‘Flexibility’ is education’s new buzz word. Check out the talk about the need for it and all those No Child Left Behind Act (NCLB) waivers, while we await Congress’ NCLB reauthorization. Nineteen states already have such waivers, giving them flexibility, and more are expected. That’s getting close to half the states! What about some flexibility for special education, while we await the next reauthorization of the IDEA (Individuals with Disabilities Education Act), the nation’s special education law?

Miriam K. Freedman

Flexibility in special education is sorely lacking. Consider these examples: (a) While Congress made some welcome changes in 2004, the system still feels like a regulatory straitjacket where paperwork, timelines, meetings, and compliance rule. (b) Specifically, while some attempts to provide flexibility were made, several came with new compliance and paperwork requirements. (c) In June 2011, the U. S. Department of Education’s Office of Special Education Programs (OSEP) allowed school districts some flexibility in how they spend special education funds (the ‘maintenance of effort’ requirement). Yet, after pushback from advocacy groups, OSEP rescinded that flexibility in April 2012, less than a year later.

In 1975, Congress created an adversarial special education system, built on distrust between parents of children with disabilities and schools — with the unproven assumption that somehow more process would protect them and improve educational outcomes. Parents can dispute their child’s IEP (Individualized Education Program) of services that the school offers, and request due process mediations or hearings. As a result, educators spend time on meetings, paperwork, testing, writing reports, litigation and preparing for litigation, and parents spend time learning the law in order to advocate for their children—against their schools. Both groups take precious time away from focusing on teaching and learning.

But consider: What if the vast majority of schools and parents don’t need or want all those requirements, especially when students are doing well? What if the regulatory demands are really designed for the relatively few situations where disputes about an IEP may occur?

By way of example, let’s review one state’s numbers. Massachusetts has close to a million students…

980,459. Of these, approximately 166,000 students have IEPs—about 17% of the school population. (Yes, 17% is high—state eligibility rates around the country range from 9% to 18%.)

During the 2011 fiscal year, of the 166,000 students, parents rejected 8348 IEPs—just half of one percent of all IEPs. Presumably, the other 99.5% of parents were satisfied—or satisfied enough—with their children’s education. Or, even if some of them were not (or didn’t understand that they could reject an IEP), the overwhelming number of parents didn’t dispute their children’s services. Let’s call them the 97 or 98 or 99%.

We digress to review scant research on parent satisfaction. While we may not have enough research, two reports—one from 1989 and another from 2008, found high levels of satisfaction. In the first, the satisfaction rate was around 70%. In the later study of parents of preschoolers with autism spectrum disorders (ASD) and other disabilities, the satisfaction rates were 86.8% and 90.1% respectively. Between 91% and 96% of parents of children with ASD reported being satisfied or very satisfied with their child’s program, teachers, and services.

Back to those Massachusetts numbers. Of the 8348 rejected IEPs, 544 hearings were requested (6.5% of the rejected IEPs). Thus, some 99.97% of parents of students with disabilities did not request a hearing. (Note that there were also 809 mediation requests and that schools, not parents, request a small percentage of hearings. This article does not track these trends.)

And finally, of the 166,000 IEPs, we come down to the fact that just 35 hearing decisions were written in 2011—a trickle of a trickle of a trickle…

So why are there so many state and federal regulations and bureaucratic requirements for all schools and parents? Could it be that the focus, attention, fears, moneys, procedures, litigation, fear of litigation, etc. are about that one half of one percent?

What about the vast majority of parents or schools who do not seem to need or want them all? Where are their rights to create trust-based and positive relations between school and home? How about reinventing this system with innovative approaches to promote flexibility in appropriate situations? One suggestion: While maintaining the school’s substantive responsibility to provide the child a free appropriate public education (FAPE), how about allowing schools and parents voluntarily to agree to suspend some procedural requirements, knowing that either of them can opt back in to the standard requirements at any time?

A simple agreement can be developed (without new federal paperwork mandates!), whereby parents and schools can agree to:

develop a short, focused learning plan instead of the procedurally-bound IEP; or

update the child’s program without annual Team meetings when the program is working well; or

create similar report cards for students with disabilities as regular education students receive, without additional quarterly reports; or

build a positive and effective communication system between school and home outside the Team process; or …

This post is not about any specific suggestion or innovation. It’s about the fact that in spite of ‘flexibility’ in the wider education community, special education is still bound by a 35+year old burdensome, adversarial, and regulatory system—even when schools and parents don’t want that and children are doing well.

In addition to the half one percent described above, we need to serve the vast majority of schools and parents of students with disabilities—who seek to work well together. The law should allow them flexibility—without creating new paperwork burdens. Sadly, in spite of the fact that NO evidence supports the current rigid compliance-driven use of scarce public resources as a way to improve teaching and learning for students, such flexibility simply does not yet exist.

This rigidity is not the way to run an education system, especially when we also consider the far larger community of regular education students in our schools—all of whose interests and needs have to be met by schools in those short six-hour days. It is time for all stakeholders for all students to focus squarely on education—not compliance. Parents and schools should have flexibility to work together and be able to opt out of requirements that they don’t need or want, especially when children are doing well. Real flexibility in special education is long overdue. It should become part of Congress’ next reauthorization.

Miriam Kurtzig Freedman is a lawyer, speaker, consultant, and author, and an expert in public education law. For more than 30 years, Miriam has worked with educators, parents, policy makers, and citizens to deal with the legal requirements which impact schools. Miriam translates complex legalese into plain English, and focuses on good preventive practices. For more information, visit her website, www.schoollawpro.com.

Matthew Tabor

Matthew is a prolific, independent voice in the national education debate. He is a tireless advocate for high academic standards from pre-K through graduate school, fiscal sense and personal responsibility. He values parents’ and families’ rights and believes in accountability for teachers, administrators, politicians and all taxpayer-funded education entities.
With a unique background that includes work in higher education, executive recruiting, professional sport and government, Matthew has consulted on new media and communication strategies for a broad range of clients. He writes the blog “Education for the Aughts” at www.matthewktabor.com , has contributed to National Journal’s ‘Expert’ blog for Education , and interacts with the education community on Twitter and Google+.